Legal Consequences of International Violations Resulting from the Construction of the Wall

This is the third and last part of our article series dealing with the international law position on the Israeli Wall of Separation constructed on the Palestinian Occupied Territories including East Jerusalem. This article mainly focuses on the consequences and responsibilities emerge from violating international law in this specific case.

Legal Consequences on Israel

Israel’s justifications for the construction of the wall

Israel has justified its action of the wall construction in two main arguments: the state of self-defense against the suicide bombing committed by the Palestinian armed groups against Israeli civilians, in which it invoked Article 51 of the UN Charter and UN Security Council resolutions 1368 and 1373 (2001), and the state of necessity. The Israeli government argued that an observed reduction of the Israeli civilians killed by Palestinian attacks of approximately 45%; 76 Israeli were killed in 2003 (before the wall construction) to 53 in 2004 (after the wall construction). Nonetheless, the suicide bombing attacks was reduced only by 5 attacks: 26 attacks in 2003 to 21 attacks in 2004.

With reference to the first argument, in the Wall the ICJ noted that according to Article 51 of the UN Charter, a state has an inherent right of self –defense. However, this right is not absolute as it has some requirements to apply; the most important one is that an armed attack should be held by another state. The occupied Palestinian territory, however, is under the effective control of Israel and does not constitute another state; thus, neither Article 51 of the UN Charter, nor UN Security Council resolutions 1368 and 1373 (2001) are applicable to the wall construction. Moreover, according to the Palestinian counterargument, Israel is obviously mixes between jus in Bello under the International Humanitarian Law, to which the right of self –defense belongs, and jus in bellum to which rules that govern war and armed conflicts belong. In contrast, in Mara’aba v. the Prime Minister of Israel, the Israeli High Court of Justice noted that Article 51 of the UN Charter may be invoked in cases of armed attacks from non-state actors, just as the United States justification of the war on Al-Qa’eda.

For the second argument, The Israeli foreign Minister stated that the suicide bombing used by Palestinians as a warfare method invokes the state of necessity and requires the acceleration in the wall construction process. In the Wall case the ICJ recognized the Israeli legitimate right to protect its civilians against the indiscriminate Palestinian attacks; however, this state of necessity must be subject to the test of proportionality. Moreover, for the necessity state to apply, the committed action must be the last and most effective way to render the attacks, in other words, no less strict alternative should be available for the Israeli government to prevent the Palestinian attacks. Therefore, the construction of the wall is disproportional measure to satisfy the Israeli necessity to protect its civilians as Israel could have constructed the wall along the green Line rather than going beyond it. Similarly, in Gabicikovo- Nagymaros the ICJ noted that the state of necessity is very limited state and should be exercised on a very exceptional basis; therefore, Israel argument regarding the state of necessity as a justification of the wall construction was declared unacceptable by the ICJ. In contrast, in Beit Sourike village v. the Government of Israel, the Israeli High Court of justice invoked the necessity state and declared the wall construction legal; the court held that “it is the security perspective not the political one which must examine a route based on its security merits alone, without regard for the location of the green line.”

It is worth noting that two judges of the ICJ dissented the majority decision regarding the Wall decision. Justice Thomas Buergenthal stated that “ICJ failed to consider Palestinian terror attacks on Israeli Civilians, although it does not relieve Israel from its international obligations, it would serve humanitarian needs of Palestinian people.” Justice Higgins in his turn criticized the ICJ for dealing with the Israeli right of self-defense in a way that ignored the Israeli military necessity.

When does state international responsibility arise?

A state is internationally responsible whenever it commits an international act of a wrongful nature, in other words, whenever a state violates international law its international responsibility arises. This wrongful act, however, has some applicability requirements which are:

A state should contribute to the act in accordance with international law;

The act should be committed in violation of international law; and

The act should not be justifiable under international law.

Examples for justifications under international law are: the state of necessity, and the state of self-defense. Regarding the Israeli justifications, John Dugard stated that “a balance must be struck between respect for human rights and the interest of security.”Finally, the ICJ rendered these two justifications Inapplicable to the Israeli construction of the wall, which makes Israel bears ab international responsibility on its wrongful act.

The implications of Israeli international responsibility because of the wall construction:

According to Article 30 of the State International responsibility Act, there are two main categories of implications resulting from the state international responsibility, which are:

The obligation to cease or to stop the wrongful act;

The obligation to repair the violations that have already occurred; and

The obligation to assure or guarantee non-repetition of the wrongful act.

The reparation has more than one approach; in case the violation is removable the violator state has an obligation to stop its violation first, and to remove its implications second so that the parties are back to the previous position before the violation took place. In case the violation is irremovable the violator state has an obligation to financially compensate the affected people.

In regard to our issue, the ICJ demanded Israel to:

Stop its illegal construction of the wall;

Dismantle what has been already constructed of the wall;

Cancel all legislations and military orders related to the construction of the wall; and

Repair all damages resulting from the construction of the wall.

Although the Israeli High Court of Justice, in both Beit Sourike Village v. the Government of Israel and in Mara’aba v. the Prime Minister of Israel declared the wall construction legal and legitimate, it noted that the route of the wall in some places was disproportional; thus, the court demanded Israel to compensate the affected Palestinians and to renew the disproportional rout of the wall. With reference to the European system of Human Rights, the court has recognized the right to remedy as an essential right of individuals in case the state has violated their human rights, in Cyprus v. Turkey, the European Court of Human Rights found Turkey in violation of Article 13 of the European Convention on Human Rights,as The Cypriot citizens have been denied access to their property and were deprived of peaceful enjoyment of their possessions in violation of Article 1 of Protocol 1. Still yet, they were deprived from a just remedy in accordance with Article 13 of the Convention. Accordingly, the European Court of Human Rights, in all probability, would held the Israeli lack of just remedies for the affected Palestinians from the illegal construction of the wall in violation of Article 13 of the European Convention on Human Rights.

The following is a clarifying chart that compares between the ICJ position from specific issues regarding the construction of the wall and the Israeli High Court of Justice position from the same issues:

The Israeli High Court Position from the Wall Issues in Comparison with the ICJ Position from such Issues

Issue

ICJ Position

Legal Basis

Israeli High Court Position

Legal Basis

Self-Determination

Violated

-UN Charter

-ICCPR

-ICESCR

Hardly Mentioned it

Considered it a political issue not a legal one

–

Israeli Settlements Legality

Illegal

Article 49 (6) of the Fourth Geneva Convention 1949

Did not Address the Issue

–

Maintain Public Order and Safety

Violated

Article 43 of the Fourth Hague Convention 1907

Addressed the Issue with regard to the Settlers

Mara’aba v. Prime Minister of Israel

Land Annexation

Violated

-Article 47 of the Fourth Geneva Convention 1949

-Article 2 (4) of the UN Charter

Did not Address the Issue

–

Chang the Status of the Occupied Palestinian Territory

Violated

Articles 49 (1) and 49 (6) of the Fourth Geneva Convention 1949

Did not address the Issue

–

Destructing Private Property

Violated

-Article 53 of the Fourth Geneva Convention 1949

-Article 23(g) and 46 of the Fourth Hague Convention 1907

Did not Address the Issue

–

Self-Defense

Unaccepted as a justification for the Israeli Construction of the Wall

Self-Defense may be invoked in case of external attack, Palestine, however, is under the effective control of Israel and not an external state

Accepted as a justification for the Construction of the Wall

-Article 51 of the UN Charter

-Security Council Resolutions 1368 &1373 (2001)

-Mara’aba v. Prime Minister of Israel

State of Necessity

Unaccepted as a Justification for the Israeli Construction of the Wall

There is a less restrict Alternative that is, to construct a wall along the Israeli Boundaries without going beyond the Palestinians Boundaries

Accepted as a Justification for the Wall’s Construction

-Beit Sourike Village v. the Government of Israel

-Mara’aba v. Prime Minister of Israel

-Due to the Palestinian Suicide Bombing inside Israel.

Proportionality of the Route of the Wall

Disproportional in General

Does not meet the conditions of the state of necessity

Disproportional in some places

-Beit Sourike Village v. the Government of Israel

-Mara’aba v. Prime Minister of Israel

Compensation (Just Remedy)

An Israeli Obligation for all Affected Palestinians

As a requirement of the International Responsibility that arises from this wrongful act

An Israeli Obligation for some Affected Palestinians

-Beit Sourike Village v. the Government of Israel

-Mara’aba v. Prime Minister of Israel

Legality of the Wall in General

Illegal

In Violation of International Human Rights Law, International Humanitarian Law, and UN Principles

Legal and Legitimate

-Due to the State of Self-Defense

-Due to the State of Necessity

-Beit Sourike Village v. the Government of Israel

-Mara’aba v. Prime Minister of Israel

Legal Obligations of Other States & of the United Nations

Legal Obligations of Other States

States Obligations on the Israeli Violations of Human Rights:

Human Rights have a dual nature: positive and negative. States are not only obligated to ensure a sufficient and adequate level of Human Rights enjoyment, but also they are obligated to refrain from any act that may violate individuals’ human rights.Therefore, human rights obligations have three distinct aspects:

Obligation to Respect: state is obligated to refrain from any act that constitutes a violation of human rights;

Obligation to Protect: state is obligated to prevent or stop any act that constitutes a violation of human rights; and

Obligation to Fulfill: state is obligated to ensure full realization of human rights through judicial, administrative, and legislative measures.

These are the three aspects of domestic human rights environment. UN Committee on Economic, Social, and Cultural Rights, however, extended the applicability of these aspects to the international environment of human rights. However, due to legal and political constraints, one can notice the presence of a de facto difference between a universal enjoyment of human rights and a universal enforcement of human rights, although, logically, the later constitutes an essential requirement of the former. Thus a state may not be able to enforce human rights outside its territory (extraterritoriality) except in very limited situations. In contrast, in Ireland v. UK the European court of Human Rights noted that the European Convention on Human Rights is of a nature of collective enforcement. Furthermore, according to the fourth protocol preamble regarding the issue of European Convention on Human Rights’ collective enforcement: this protocol has “[Been issued] to take steps to ensure the collective enforcement of certain rights and freedoms …”

On the other side, in Barcelona traction, the ICJ emphasized the nature of some international obligations as an erga omns, including the basic human rights and the right of Self-Determination; therefore, State members of the international community should take the appropriate collective measure to restore Palestinian rights violated by the Israeli construction of the wall and guarantee Israeli non-repetition of any future violations.

States Obligation on the Israeli Violations of International Humanitarian Law:

What makes the Fourth Geneva Convention and its Protocols of a unique legal nature is the collective responsibility of the state parties to them. State parties to the Fourth Geneva have a duty to ensure respect to the convention’s provisions.Because Israel has violated several provisions not only in the Fourth Geneva Convention, but also in its additional First Protocol and in the Fourth Hague Convention, state parties to the Geneva Convention are under an obligation to discharge their duty of ensuring respect to the convention’s principles. Therefore, these states should compel Israel to stop its violations and guarantee respect for the rules and principles of the International Humanitarian Law in general and for the Fourth Geneva provisions in specific.

States responsibility to ensure respect for the provisions of the Fourth Geneva Convention in the occupied Palestinian territory has been invoked, in many occasions, in the United Nations. For example the UN Security Council in its resolutions 681 (1990) and 1322 (2000), as well as the general Assembly resolution 43/21 (1988) have called upon states parties to the Fourth Geneva to ensure the full Israeli compliance with the provisions of the convention.

What are other states required to do under international law?

In addition to the other states’ responsibility to refrain from assisting Israel in its illegal construction of the wall especially that according to Article 16 of the International Law Commission Articles on responsibility of States for Internationally wrongful acts: “a state which aids or assists another state in the commission of an internationally wrongful act by the latter is internationally responsible for doing so…” states have the following responsibilities:

Publically affirm the ICJ advisory opinion, and declare the Israeli construction of the wall illegal, and call upon Israel to dismantle what has been already constructed of the wall, and repair all damages resulting from its illegal construction;

Immediately suspend all the financial and military aids that help Israel to continue its violations of the international law; and

Collectively and individually work, through the UN and other concerned international organizations, to ensure the Israeli respect and compliance with the rules and principles of the International Human Rights Law and the International Humanitarian Law.

The Obligations of the United Nations:

The United Nations was founded on the ruins of the Second World War; therefore, its most fundamental purpose is maintaining the international peace and security. According to Article 24 of the charter, the UN Security Council bears the primary responsibility to maintain the international peace and security. However, in case the UN Security Council failed to exercise its primary responsibility due to the use of the veto by one of the permanent members in the UN Security Council, this responsibility of maintaining the international peace and security becomes the General Assembly primary responsibility. According to the (Uniting for Peace) resolution 1950 the General Assembly may issue mandatory recommendations calling for international collective actions to restore and protect the international peace and security. Because of the permanent members’ use of their right of veto, the UN has not played a significant rule in the Palestinian Israeli struggle, and the most obvious proof is that all the peace agreements between Israel on one hand and the Arab World or PLO on the other hand took place outside the UN. Therefore, the UN General Assembly should give a serious consideration for the possibility of invoking the (Uniting for Peace) resolution since the UN Security Council has failed over and over again to maintain the international peace and security in the Middle East in general and in the Palestinian occupied territory in specific.

On the other hand, according to Article 1 (3) of the United Nations Charter, promoting international co-proration between states members of the international community regarding human rights issues constitutes a fundamental purpose of the United Nations. While both Article 55 and 56 of the United Nations Charter require a universal co-proration between the states, with the help of the United Nations, to ensure respect for international human rights. Therefore, the UN is under an obligation to move jointly and collectively to protect human rights in the occupied Palestinian territory, not only through its Security Council and its General Assembly, but also through its International Court of Justice.With full understanding of the difficulties that face the ICJ in activating its judicial capacity due to jurisdictional issues, the ICJ power of issuing advisory opinions may play an effective rule in the Palestinian Israeli conflict. Although the ICJ advisory opinions are of a non-binding nature, they still carry a significant political weight, and still represent “an authoritative statement of legal position,” According to Peter Bekker. In conclusion, the UN which is the international guardian on human rights and international peace and security should play more effective rule in the Palestinian Israeli struggle in a way that achieves international peace and stability to the whole area of the Middle East.

Conclusion

After the Second Palestinian Uprising ‘Intifada’2000, Palestinian armed groups came up with a new method of warfare: that is suicide bombing inside Israel. Israel made use of this situation; in 2002, the Israeli government adopted a plan to construct a wall between the Israeli and the Palestinian occupied territories. The wall, however, went beyond the Green Line, which is the legal boundary between the two territories. The wall complicated Palestinians’ daily lives and created many humanitarian obstacles; therefore, the United Nations General Assembly interfered in 2004. In its report, the United Nations General Assembly noted the high seriousness of the situation in the Palestinian occupied territory; thus, it asked the International Court of Justice to issue an advisory opinion on the situation. Indeed, in 2004, the ICJ issued an advisory opinion on the situation. The ICJ advisory opinion analyzed various violations resulting from the Israeli construction of the wall on the Palestinian occupied territory. Violations were analyzed under International Human Rights Law, International Humanitarian Law, and United Nations Principles.

For human rights violations, the Israeli construction of the wall ripped the West Bank territory apart. The wall highly restricted freedom of movement as it required special permits, which resulted in humiliating Palestinians and treating them inhumanely. These restrictions imposed on Palestinians after the wall’s construction prevented them from enjoying an adequate standard of living, left them without access to health facilities, educational institutes, or workshops. Moreover, the reckless route of the wall divided residential habitual areas, which in turn separated families and deprived them from stability and privacy. Previously mentioned restrictions on the daily lives of Palestinians constitute serious violations of International Human Rights law. More specifically, they constitute severe violations of the International Covenant on Civil and Political Rights 1966, International Covenant on Economic, Social, and Cultural Rights 1966, and the International Convention on the Rights of the Child 1990.

In regard to Humanitarian Law violations, the Israeli construction of the Wall destroyed private property of Palestinians without a legal justifiable military necessity. Furthermore, the wall, although not a De Jure annexation of Palestinian lands, has effects tantamount to a De Facto annexation of the Palestinian lands, which prevents the Palestinians from exercising their inherent right of self-determination. Not only does the wall illegally annex Palestinian occupied territory, but also it changes the occupied territory status geographically, materially, naturally, and legally in a way that affects the demographic composition of the occupied society. This demographic composition is affected mostly by the wall route that encircled illegal Israeli settlements in the West Bank, on one hand, and forcedly deports Palestinian civilians from the occupied territory affected by the wall’s route. Furthermore, the wall exists, in the opinions of international expertise, as an illegal collective punishment for the whole Palestinian society. All these illegal actions by the Israeli government constitute serious violations of International Humanitarian Law, more specifically, Fourth Hague Convention 1907, Fourth Geneva Convention 1949, and First Protocol Additional to Geneva Conventions 1977. Moreover, the wall construction violates the international rules and principles of the United Nations Charter and various resolutions.

In summary, the wall construction on the occupied Palestinian territory is in violation of international human rights law, international humanitarian law, and international general principles of the United Nations. Accordingly, Israel bears an international responsibility on its violations. This international responsibility requires Israel to stop the construction of the wall, dismantle what has been already built, repair all damages caused to Palestinians and their property, and compensate them for their losses. On the other hand, other states have an international responsibility on the Israeli violations of the International Law. States are obligated, under International law, to take collective and effective measures to restore the Israeli violations of Human rights. Moreover, states have a collective obligation to ensure respect to International Humanitarian Law, more specifically, to Geneva Conventions and their protocols. Other states, therefore, are obligated to compel Israel to stop its illegal construction of the wall on the Palestinian occupied territory on one hand, and to refrain from any financial, military, or diplomatic assistance to Israel to continue its illegal actions in the Palestinian occupied territory.

In addition to the Israeli international responsibility and other states international responsibility, the United Nations has an international responsibility on the Israeli violations of international law. The UN has to discharge its primary duty to maintain international peace and security. UN Security Council, more specifically, has to play more effective rule in the Palestinian issue, as it has to enforce all its previous resolutions regarding the Palestinian Israeli struggle and to compel Israel to bear its international responsibilities. In case the UN Security Council failed to perform its primary duty, the UN General Assembly should pay serious consideration to the possibility of invoking its resolution, uniting for Peace 1950. Uniting for Peace resolution will allow the UN General Assembly to take effective measures towards achieving justice to the Palestinian people. Finally, the International Court of Justice should play a more significant role in the Palestinian situation. This role may not be played through cases due to the jurisdictional requirements; however, more advisory opinions should be passed on other serious issues such as the issue of illegal settlements in the West Bank.

In conclusion, Israel, through its construction of the wall on the occupied Palestinian territory, has violated International Law different chambers. Severe violations of international Human Rights Law, International Humanitarian Law, and UN international principles have been committed. This illegal situation invokes the international community’s responsibility towards Palestine and its oppressed people. Israel has shown no intention to change its illegal policy in the Occupied Palestinian territory, which gives rise to the question: until when would Israel violate the most fundamental human rights of an entire nation before the eyes of the ‘civilized’ international community in the twenty first century?

These are two clarifying charts of violations committed by Israel under International Law

Human Rights Violated, according to the ICJ, Because of the Israeli Construction of the Wall

Human Right Violated

Legal Source

Formal Title of the Source

Israeli Status (Ratified or did not Ratified)

Self-Determination

-UN Charter 1945

-ICCPR 1966

-ICESCR 1966

-United Nations Charter

– International Covenant on Civil and Political Rights

-International Covenant on Economic, Social, and Cultural Rights

-Party to the UN and to its binding Charter

– Ratified

– Ratified

Human Treatment

ICCPR 1966

International Covenant on Civil and Political Rights

Ratified

Freedom of Movement

ICCPR 1966

International Covenant on Civil and Political Rights

Ratified

Right to Work

ICESCR 1966

International Covenant on Economic, Social, and Cultural Rights

Ratified

Family Life

-ICESCR 1966

-CRC 1990

-International Covenant on Economic, Social, and Cultural Rights

-International Convention on the Rights of Child

-Ratified

-Ratified

Adequate Standard of Living

-ICESCR 1966

-CRC 1990

-International Covenant on Economic, Social, and Cultural Rights

-International Convention on the Rights of Child

-Ratified

-Ratified

Education

CRC 1990

International Convention on the Rights of Child

Ratified

Health

CRC 1990

International Convention on the Rights of Child

Ratified

International Humanitarian Law’s Obligations Violated, according to the ICJ, Because of the Israeli Construction of the Wall

Obligation Violated

Legal Source

Formal Legal Title

Israeli Status (Ratified or did not Ratified)

Maintain Public Order and Safety in the Occupied Territories

Fourth Hague Convention 1907

Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague

Not Ratified, still yet, constitutes a binding customary international law

Refrain From Destructing Private Property in the Occupied Territories

-Fourth Geneva Convention 1949

-Fourth Hague Convention 1907

-Convention (IV) relative to the Protection of Civilian Persons in Time of War.

-Mentioned Previously.

Ratified; however, the Israeli Government denies it De Jury applicability and sticks to the De Facto applicability for some unidentified humanitarian provisions

Refrain From Land Annexation

-Fourth Geneva Convention 1949

-UN Charter 1945

Mentioned Previously

Both Ratified

Refrain From Transferring the Occupier Civilians to the Occupied Territories

Fourth Geneva Convention 1949

Mentioned Previously

Ratified

Refrain From Forcedly Departing Occupied Civilians From the Occupied Territories

Fourth Geneva Convention 1949

Mentioned Previously

Ratified

Refrain From Collectively Punish the Occupied Society

(although not addressed by the ICJ)

-Fourth Geneva Convention 1949

-First Protocol Additional to Geneva 1977

-Mentioned Previously

-Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)

-Ratified

-Not Ratified But the majority of its Provisions constitute a binding international customary law